State v. MatthewsState v. Matthews
Amber L. Wagner, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Ronald R. Matthews appeals the denial by the Bowling Green Municipal Court of his
{¶ 3} “Counsel: Your Honor, my client is indicating he wants to withdraw his plea.
{¶ 4} “The Court: Well, it is unfortunate but I think he is too late.
{¶ 5} “Mr. Matthews: That wasn‘t the agreement that I had, Judge. I was under the impression there was an agreement reached here.
{¶ 6} “Counsel: I explained –
{¶ 7} “The Court: It is a recommendation, it is not an agreement. And let me finish the sentence.”
{¶ 8} After the court completed pronouncing sentence, appellant further explained:
{¶ 9} “Mr. Matthews: Based upon what I was told, it was two years unsupervised probation. Thirty days in jail, three days suspended – or thirty days suspended, three days in jail, a year‘s license suspension, six months of that is suspended, and a thousand dollar fine and four hundred dollars of that suspended. That is what I was told. That is what I have been told since the very beginning of this case. That is what they offered.
{¶ 10} “The Court: That is what the recommendation was, the Court is not bound by the recommendations.
{¶ 11} “Counsel: I will explain that.
{¶ 13} “Counsel: Thank you, Your Honor.”
{¶ 14} Matthews asserts one assignment of error on appeal:
{¶ 15} “Assignment of Error
{¶ 16} “The trial court abused its discretion by denying appellant‘s oral motion to withdraw his plea.”
{¶ 17} The central issue in this appeal is whether appellant‘s motion is to be treated as a presentence motion under
{¶ 18} The rule provides for a manifest injustice standard for postsentence motions to withdraw guilty or no contest pleas. State v. Xie (1992), 62 Ohio St.3d 521, 526. Postsentence motions under
{¶ 19} Presentence motions, however, “should be freely and liberally granted.” State v. Xie at 527. In considering a presentence motion, “[a] trial court must conduct a
{¶ 20}
{¶ 21} “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” (Emphasis added.)
{¶ 22} Appellant argues that he made his motion before imposition of sentence by the court, because the motion was made prior to the trial court‘s filing of the sentencing judgment entry. Appellant argues that Ohio courts are courts of record and courts of record speak through their journals. State ex rel. Indus. Comm. v. Day (1940), 136 Ohio St. 477, 479. A trial court, following proper procedure, retains authority to modify a sentence until it is journalized. State v. Detamore (Mar. 20, 2001), 4th Dist. No. 00CA035; State v. Jones (Mar. 18, 1999), 10th Dist. No. 98AP-639.
{¶ 23} Appellant‘s argument fails to recognize the purpose for the differing standards for presentence and postsentence motions under
{¶ 25} The Second District Court of Appeals in the cases of State v. McComb, 2d Dist. Nos. 22570 and 22571, 2008-Ohio-295 and State v. Sylvester, 2d Dist. No. 22289, 2008-Ohio-2901, followed the analysis in Kadwell and ruled that the postsentence standard applied to
{¶ 26} We agree with the reasoning of the Second District Court of Appeals in McComb and Sylvester in the circumstances presented here. Where a
{¶ 27} Treating imposition of sentence for purposes of
{¶ 28} Having determined the applicable standard, we address its application to appellant‘s appeal. A trial court‘s decision to grant or deny a
{¶ 29} As we have determined that the motion is to be treated as a postsentence motion under
{¶ 30} Appellant‘s argument that the trial court abused its discretion in failing to conduct a hearing on the motion also fails. No hearing is required on postsentence motions under the rule unless the facts as alleged by the appellant, taken as true, would require the court to permit withdrawal of the plea. State v. Blatnik, 17 Ohio App.3d at 204. The fact that a sentence imposed pursuant to a guilty or no contest plea is unexpectedly more severe than anticipated does not present a manifest injustice for which a postsentence
{¶ 31} Although appellant argues that the trial court erred in failing to provide an opportunity to more fully present his motion at the sentencing hearing, appellant raised no additional facts or any additional grounds in the trial court to support granting of the motion whether at the time of sentencing or afterwards, either orally or in writing. We conclude that appellant was not denied a fair opportunity to fully present the motion to withdraw his no contest plea.
{¶ 32} Accordingly, we find appellant‘s sole assignment of error is not well-taken.
JUDMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J.
JUDGE
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, P.J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.